Nguyen v Westpac Banking Corporation

SUPREME COURT OF QUEENSLAND

CITATION:

Nguyen v Westpac Banking Corporation [2014] QCA 117

PARTIES:

XUAN THU NGUYEN
(appellant)
v
WESTPAC BANKING CORPORATION
ABN 33 007 457 141
(respondent)

FILE NO/S:

Appeal No 8021 of 2013
DC No 2552 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2014

JUDGES:

Gotterson and Morrison JJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.Appeal dismissed.   

2.Appellant to pay the respondent’s costs of the appeal on the standard basis.   

CATCHWORDS:

MORTGAGES – RECEIVERS – POWERS, DUTIES AND LIABILITIES – where the appellant customer had two overdraft facilities with the respondent bank – where the facilities were secured by a mortgage over the appellant’s real property – where the debt balances in the facilities were in excess of their limits – where this constituted a Default Event under the mortgage Schedule – where the appellant submitted that the overdraft limits had been increased – whether the appellant had to deliver up vacant possession of the mortgaged property to the respondent and receiver

State Bank v Lo [2000] NSWSC 1191, applied

COUNSEL:

The appellant appeared on his own behalf
E J Goodwin for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Gadens Lawyers for the respondent

1. GOTTERSON JA:  On 30 July 2013, a judge of the District Court at Brisbane granted an application by the respondent to this appeal, Westpac Banking Corporation, which sought an order that the appellant, Xuan Thu Nguyen, deliver up vacant possession of the land at 519 Archerfield Road, Richlands, Queensland (the “property”) to Ms Julie Ann Williams, who was also an applicant in the proceedings but is not a respondent to this appeal.  The appellant was ordered to give up possession within 28 days.

1. The appellant was a farmer and the sole shareholder and director of Queensland Fresh Food Supplies Pty Ltd (“QFFS”).  He was the registered proprietor of the property where QFFS carried on a farming business.  In February 2010 the appellant applied to the respondent for two overdraft facilities- the first was to the amount of $150,000 and was granted to the appellant personally (the “first facility”), and the second was to the amount of $100,000 and was granted to QFFS (the “second facility”).  The first overdraft was secured by a mortgage over the property.

1. The appellant executed a personal guarantee of performance by QFFS of its obligations under the second facility. [1]  On 10 March 2010, the appellant executed a mortgage of the property in favour of the respondent.[2]  The mortgage was duly registered.  It was security to the respondent for the performance by the appellant of his obligations to the respondent under both the first facility and the guarantee.

   [1]AB 162-167.

   [2]AB 57-74.

1. Other than increasing the limit of the second facility to $130,000 in May 2011,[3] the facility agreements continued…